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Politics, Problems, and Power at the New York State Athletic Commission: Part Two

28
Jan

Nitin Sethi, a neurologist whose primary practice is affiliated with one of the best research and patient care centers in the world, is chief medical officer for the New York State Athletic Commission.

Dr. Sethi (who acknowledges that “no amount of boxing is good for the brain”) devotes an enormous amount of time and energy to his part-time job with the commission. He’s at the NYSAC for all the right reasons. It’s not the money. It’s not an ego trip. Sethi cares about boxing and its practitioners. In an October 2019 article for the Journal of Combat Sports Medicine, he wrote, “While ethical issues surrounding boxing have and continue to be passionately debated, the sport is here to stay and the passion and love for the sweet science is shared by millions around the world. Hence a more realistic goal for ringside physicians should be to help make this sport as safe as possible.”

Dr. Nitin Sethi examines Nate Diaz before stopping the UFC 244 main event.

Sethi is a valuable asset to the NYSAC. One might take issue with some of his initiatives (such as extending the one-minute rest period between rounds to allow for an extended examination of fighters by a commission doctor). But he has been steadfast in his commitment to protecting the heath and safety of fighters which, for too many in boxing, is little more than a rhetorical device.

One area where Sethi has excelled is in stopping fights when they should be stopped. A fighter’s corner and sometimes even the referee might be concerned about whether the decision to stop a fight will cost them their next big payday. The ring doctor is concerned only with protecting the health and safety of the fighter.

This concern exposed Sethi to merciless ignorant online attacks (including ethnic slurs and attempts to damage his reputation by posting fake patient reviews) following UFC 244 at Madison Square Garden when he stopped the bout between Nate Diaz and Jorge Masvidal because of a horrific cut above Diaz’s right eye. Thereafter, neither the NYSAC or the Association of Ringside Physicians supported Sethi as forcefully as they should have. But Sethi made the right call that night.

Nate Diaz

“I just did my job and stopped the fight when I was unable to guarantee the health and safety of the combatant going forward,” he said afterward. “My assessment was objective, based entirely on the medical facts in front of me at that time and based on my overall assessment of the fighter and not just the laceration. I am glad I did what I was there for. If I had not, I would have let myself down in my own eyes and those of people whom I respect very much.”

But Sethi is limited in what he can accomplish at the NYSAC. Too often, the commission overlords play politics with medical issues.

“You’d think that, after the human tragedy of Magomed Abdusalamov and paying twenty-two million dollars to settle that case, the commission would do everything possible to clean up its act,” one member of the boxing community notes. “But that hasn’t happened.”

Nowhere is this failure more evident than in the NYSAC’s handling of issues relating to performance enhancing drugs. “We keep talking about improving our PED program,” one frustrated commission employee says. “We talk about it, but we don’t do it.”

A fighter can lose his or her life in the ring. As Tris Dixon recently wrote, “There are few worse crimes in all of sport than allowing one person a physical advantage over another when the physical stakes are so high.”

But the NYSAC’s drug-testing program is fundamentally flawed. The commission takes a pre-fight urine sample from each fighter on fight night. For championship bouts, a post-fight urine sample is also taken. In today’s world of micro-dosing, having fighters urinate into a cup on fight night does not constitute an adequate PED-testing program.

The NYSAC has an outdated prohibited drug list and refuses to incorporate the World Anti-Doping Agency’s prohibited list by reference or separately list the substances banned by WADA. Thus, as things now stand, erythropoietin (EPO), blood-doping, and meldonium – each of which is banned by every credible jurisdiction – are not banned by the NYSAC.

Neither Quest Diagnostics or Labcorp (where blood and urine samples are sent by the NYSAC) is accredited by WADA.

Last spring, the New Jersey State Athletic Control Board “busted” two MMA combatants for illegal PED use. One of the fighters talked openly with deputy attorney general Nick Lembo and told him that he’d been using the same substance for years in New York so he assumed it wouldn’t be a problem in New Jersey.

The case of Jarrell Miller is instructive with regard to the NYSAC’s attitude toward banned performance enhancing drugs.

Joshua (left) and Miller. Photo by Mark Robinson/ Matchroom Boxing

On April 16, 2019, it was revealed that Miller (who had signed to fight Anthony Joshua at Madison Square Garden) had tested positive with the Voluntary Anti-Doping Association for the banned substance GW1516. Two days later, VADA notified the NYSAC that a blood sample taken from Miller had tested positive for human growth hormone (a substance that, as noted above, is banned by WADA but, inexplicably, not by New York). Then, on April 19, it was announced that a urine sample taken from Miller by VADA had come back positive for EPO (another performance enhancing drug that’s widely banned but not in New York). But the NYSAC refused to suspend Miller for the GW1516, claiming that it was unable to do so because he wasn’t licensed in New York.

Pat English might be the best “boxing lawyer” in the country. He has represented Main Events for decades and is well-versed in the federal and state regulations that govern the sweet science as well as the ins and outs of illegal PED use in boxing.

On April 29, 2019, English (who is on the legal committee of the Association of Boxing Commissions) sent a letter to the ABC executive board bemoaning the fact that “certain commissions are completely ignoring their responsibilities under the Professional Boxing Health and Safety Act” and “it appears as though some commissions do not understand the extent of their authority to issue suspensions.”

English’s letter went on to state, “It now appears that certain commissions are ‘passing the trash.'” It then referenced “fighters who fail drug tests but are not placed on suspension” and declared, “An egregious example of this is the recent Jarrell Miller situation.”

“Some commissions,” English wrote, “have evaded their responsibilities by claiming that the fighter in question is not licensed in their state. The Miller situation is one of many examples. He was to fight in Madison Square Garden in June. The fight had been announced and Miller, a New York resident, had put in his renewal forms for his expired license. New York denied the license but it did not suspend Miller since he was not a licensee. This is circular logic and it misses the point. The suspension of a right to box is not synonymous with licensure. This is well established in other areas of law. If an individual’s driver’s license is suspended due to a DWI conviction, the suspension does not end when his license expires. It continues during the period set forth by the court. Placing an individual on the suspension list is not limited by whether a fighter is currently licensed in a given state, and the failure to do so under appropriate circumstances is a failure to live up to a commission’s responsibilities.”

On April 30, 2019, ABC president Mike Mazzuli forwarded English’s letter to NYSAC executive director Kim Sumbler with the notation, “You may want to use this with your attorneys. I do not disagree with Pat.”

That same day, Sumbler responded to Mazzuli by email, writing, “As much as I don’t appreciate his inference that NY is ‘passing the trash,’ I don’t disagree with his argument and reasoning. I passed it up the chain for review.”

Two minutes later, Mazzuli emailed back, “It was more than just Miller’s suspension.”

Sumbler concurred with a one-word reply: “True.”

That afternoon, four of the five NYSAC commissioners convened for a pre-scheduled meeting. Commissioners James Vosswinkel, Philip Stieg, and Edwin Torres were present at the NYSAC office at 123 William Street in New York. Commissioner Donald Patterson and Kim Sumbler participated by telephone. Commissioner Ndidi Massay did not attend.

The commission voted to allow the executive director to approve the insertion of data-tracking chips made by Sportsmedia Technology Corporation in gloves during MMA contests.

Next, Sumbler read from a written statement noting that, “The commission staff has encountered scenarios where a professional boxer is wearing tassels around his or her shoe which fall off during the course of a bout and create a potential safety concern inside the ring or can distract the referee who now has to remove the fallen tassels from inside the ring.”

In light of this danger to the health, safety, and welfare of fighters, the commission then voted to approve protocols that regulate the wearing of tassels in combat sports.

There was no discussion of Jarrell Miller or performance enhancing drugs. This is the equivalent of motorists drag-racing regularly down a city street and law enforcement authorities failing to halt the races but saying that the cars involved can’t hang fuzzy dice from rear-view mirrors unless the dice are properly attached.

The entire meeting lasted less than thirty minutes.

Two days later, on May 2 in a letter to the Association of Boxing Commissions executive board, Sumbler took issue with Pat English’s April 29 letter and maintained, “The commission does not have any jurisdiction to suspend an applicant, but, rather, may only suspend an individual after he or she has received a New York State license.” In making this statement, she relied on a single court case that had been decided twelve years earlier.

That elicited a same-day response from English, who wrote to Sumbler (with a copy to the ABC board), “The case you refer to appears to have been badly litigated on the part of the State [and] involves a suspension which probably should never have been issued since at least one other state and possibly two had looked at the same MRI and issued licenses. It is an opinion issued by the lowest level Court in New York which is not binding on any other trial Court involving very different facts.”

English then added, “I see more than twenty years worth of work in the formulation of the Professional Boxing Health and Safety Act, the Muhammad Ali Act, mandatory adherence to the suspension list, and years of ABC work pushed backward by actions (or inactions) by some in situations such as the Miller situation, most often by folks who have no background whatsoever in fighter health and safety and sometimes by those with no understanding of the sport at all. That is, to me, morally repugnant. Kim, it is obvious to me that, while the letter was sent out under your name, you did not write it. It has the ring of someone trying to justify a position rather than attempting to find a solution towards a just result. Such people, to use 1960’s phraseology, are part of the problem, not part of the solution.”

On May 6, English sent another letter to Sumbler and the ABC executive board in which he pointed out, “Miller’s Federal ID is issued by New York. The ID application form reads in part: Boxer agrees to abide by these terms and conditions [the Rules and Regulations of the New York State Athletic Commission] and any other rules set forth by the ABC and the Boxing Commission that issued the identification card.’ By using PED’s, Miller obviously violated rules of the New York State Athletic Commission in violation of his signed application for an ID. The application form which Miller would have signed also states: Any false or misleading statements on this application may result in the Boxer being placed on the National Suspension list. Frankly, if that does not give New York jurisdiction to suspend his Federal ID, I do not know what does. The language on the form signed by Miller is clear and unambiguous.”

As I’ve written before, Jarrell Miller isn’t the problem. He’s a symptom of the problem. There are many elite fighters who are equally culpable of using banned performance enhancing drugs. Miller was just less sophisticated than they are and got caught. But New York, which (unlike most states) has the resources to deal with boxing’s PED problem, has made a conscious decision to not confront the issue in a meaningful way.

Contrast New York’s handling of PED issues with the approach taken in recent years by the Nevada State Athletic Commission. In early-2018, the NSAC pulled down what was shaping up as the biggest fight of the year after Canelo Alvarez tested positive for clenbuterol. This past October, the NSAC indefinitely suspended Julio Cesar Chavez Jr. (who was not yet licensed by the state) after Chavez refused to provide VADA with a urine sample that had been requested by the Nevada commission. It’s not hard to figure out which of these two states – Nevada or New York – is making a serious effort to combat the use of banned performance enhancing drugs in boxing.

So . . . What’s really going on in New York?

One reliable source says that Kim Sumbler told him she’s “hamstrung by the people above me” on the issue of performance enhancing drugs. A second, equally reliable source says she told him that she has wanted to act more forcefully at times on the issue of performance enhancing drugs but was told she couldn’t do it. Sumbler declined to be interviewed for this article, as did James Leary and James Vosswinkel.

Who then is making PED policy at the New York State Athletic Commission? The commissioners aren’t discussing PEDs in any meaningful way. The Medical Advisory Board isn’t meeting (more on that shortly). The answer is that, right now, outside lobbyists are transmitting their wishes to the Cuomo administration which then filters them down to the NYSAC in the form of directives through the Department of State.

If Jarrell Miller had been suspended, that might have resulted in litigation. And litigation would have run the risk of opening up a Pandora’s box with regard to PEDs and the New York State Athletic Commission. Miller’s legal team might have focused on the fact that Jermall and Jermell Charlo were allowed to fight at Barclays Center after “missing” VADA tests. It might have argued that, had Miller’s sample been collected by the NYSAC and tested by Quest or LabCorp pursuant to current NYSAC protocols, the GW1516 wouldn’t have been detected. It might have drawn attention to the gaping holes in the NYSAC’s list of prohibited drugs.

The powers that be who actually control the NYSAC from above (including lobbyists) don’t want that. They’re more concerned with their own economic interests than the health and safety of fighters and the integrity of combat sports. An effective vigilant program to curtail the use of banned PEDs might drive big fights away from New York (as happened in Nevada when the December 14 fight between Danny Jacobs and Julio Cesar Chavez Jr was moved from Las Vegas to Phoenix).

The NYSAC medical staff has to take control of PED policy and do what’s right to limit the inevitable human damage that flows from illegal PED use in combat sports. The commissioners won’t do it. That was made abundantly clear at the July 24, 2019, commission meeting.

Four commissioners attended the meeting: James Vosswinkel, Edwin Torres, Donald Patterson, and (by telephone) Philip Stieg. Once again, Kim Sumbler participated via internet hook-up. Three other commission personnel (including then-counsel Theresa D’Andrea) were physically present.

One substantive matter was discussed. A urine sample taken from a journeyman heavyweight named Tyrell Wright before a losing effort at Madison Square Garden on October 27, 2018, had tested positive for Nandrolone (an easily detected banned steroid). Wright had failed to attend an administrative hearing on the matter, and the hearing examiner recommended that the commission impose a three-part penalty consisting of (1) purse forfeiture; (2) a $1,000 fine payable to the NYSAC; and (3) the revocation of Wright’s license.

Appearing at the July 24 commission meeting, Wright apologized and said that “a person I trusted” who had been with him as a physical conditioner “from day one” had given him “something I didn’t want to take.” The commissioners were unmoved and imposed the recommended penalty.

The stunning thing about the process was that no one at the meeting asked Wright for the name of the person who had given the Nandralone to him. Government entities don’t effectively combat heroin use by prosecuting addicts. They combat heroin use by prosecuting drug traffickers. Where the use of illegal performance enhancing drugs in boxing is concerned, the suppliers are more of a problem than fighters. Presumably, Wright isn’t the only fighter that this physical conditioner gave a banned substance to over the course of Wright’s seven-year ring career. But the commissioners made no effort to cut off the flow of illegal PEDs from this supplier to other fighters.

The New York State Athletic Commission has a Medical Advisory Board. The board has nine members. Five are necessary for a quorum. The most recent board meeting was held on September 25, 2019. Nitin Sethi chaired it. Four other members were present, either in person or by telephone hook-up.

Kim Sumbler began the meeting by saying that the NYSAC has excellent medical protocols. That took three minutes. The board members then went into a closed executive session to evaluate the reappointment of current ring doctors and applications for appointment by two more doctors. After the executive session ended, the renewals and new applications were approved.

Next, the board voted to recommend to the five NYSAC commissioners that the NYSAC medical manual be revised to (1) eliminate “suspicion of glaucoma” as a cause for denying a license to a fighter and require a specific finding of glaucoma; and (2) require that a certain type of platelet count for fighters be calculated once a year.

Dr. Anthony Curreri then asked a question about performance enhancing drugs which Sumbler deflected, saying that the commission was looking into the issue of banned substances. But she gave no particulars.

Exclusive of the time spent in “executive session” discussing the appointment and reappointment of ring doctors, the entire meeting lasted less than fifteen minutes.

That was the only meeting of the Medical Advisory Board in 2019. The board has met twice in the past twenty-seven months. The first of these meetings, which occurred on September 18, 2018, lasted 24 minutes.

This is not a system that does everything reasonably possible to safeguard the health and safety of fighters.

On the positive side of the ledger, James Vosswinkel has suggested that the NYSAC consider recommending or even mandating that its physicians take a course called Pre-Hospital Trauma Life Support given by the National Association of Emergency Medical Technicians in cooperation with the American College of Surgeons Committee on Trauma. No action has been taken by the Medical Advisory Board on this suggestion. But a dozen NYSAC physicians have taken the course and been certified.

However, there are more troubling issues on the negative side of the ledger.

Marcus McDaniel was shot three times in a 2016 drive-by shooting. Two of the bullets fractured ribs, punctured McDaniel’s lung, ripped through his collarbone, and chipped his spine. The third lodged in his head.

Ali Akhmedov vs. Marcus McDaniel

On June 8, 2019, McDaniel fought Ali Akhmedov on the undercard of Gennadiy Golovkin vs. Steve Rolls at Madison Square Garden and was knocked out in the third round. McDaniel couldn’t have an MRI before the fight because it might have moved the bullet in his head, so he was given a CT-scan instead. As strange as it might sound, a bullet in the head doesn’t necessarily disqualify a fighter from being licensed. A CT-scan is considered an appropriate substitute for an MRI.

But – and this is a big “but” – when commission personnel reviewed their paperwork after the June 8 fight card, they couldn’t find a New York license for McDaniel.

Marcus McDaniel (a fighter with a bullet in his head) was allowed to fight in New York without a New York license.

The commission then called Triple-G Promotions (the lead promoter for the card) but was told that it didn’t represent McDaniel. Finally, it tracked down Les Bonano (McDaniel’s promoter).

“Bobby Benton [McDaniel’s trainer] filed all the forms with the commission,” Bonano told this writer. “And I guess they lost them because, about a week after the fight, we were told that they didn’t have a New York license on file for Marcus. So we filled out the forms again. Marcus signed them again. And we filed them again with the commission.”

This is not good. What if McDaniel had been seriously injured in the fight? Think of the tragedy and the lawsuit that would have followed.

Moreover, sloppy administrative procedures and inadequate protocols at the New York State Athletic Commission extend far beyond lapses in paperwork. By and large, the men and women who run the commission wall themselves off from the boxing community. They don’t attend press conferences. They rarely visit gyms. They stifle feedback from their own staff. There’s a fundamental disconnect between the people in charge at the NYSAC and the “real world.”

In a sport as dangerous as boxing, that’s a recipe for disaster. Let a simple example suffice.

What precisely should a commission inspector do if a fighter collapses in the dressing room after a fight?

Calling a doctor would be a good start. Okay. How should the inspector call a doctor? Does the inspector leave the fighter unattended while he (or she) runs to ringside to look for a commission doctor? That could take a long time. Does the inspector telephone 911? Probably not since, pursuant to NYSAC regulations, there should already be paramedics and an ambulance on site. Does the inspector telephone someone at a designated number?

I’ve spoken with numerous inspectors and other “back of the house” NYSAC personnel. If there’s a protocol in place, they don’t know about it.

This is Part Two of a three-part series. Part One can be found here.

 

Thomas Hauser’s email address is [email protected] His most recent book – A Dangerous Journey: Another Year Inside Boxing  – was published by the University of Arkansas Press. In 2004, the Boxing Writers Association of America honored Hauser with the Nat Fleischer Award for career excellence in boxing journalism. On June 14, 2020, he will be inducted into the International Boxing Hall of Fame.